Calendar No. 489
105th Congress Report
SENATE
2d Session 105-258
_______________________________________________________________________
GOVERNMENT SECRECY ACT OF 1997
__________
R E P O R T
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 712
TO PROVIDE FOR A SYSTEM TO CLASSIFY INFORMATION IN THE INTERESTS OF
NATIONAL SECURITY AND A SYSTEM TO DECLASSIFY SUCH INFORMATION
July 22, 1998.--Ordered to be printed
COMMITTEE ON GOVERNMENTAL AFFAIRS
FRED THOMPSON, Tennessee, Chairman
WILLIAM V. ROTH, Jr., Delaware JOHN GLENN, Ohio
TED STEVENS, Alaska CARL LEVIN, Michigan
SUSAN M. COLLINS, Maine JOSEPH I. LIEBERMAN, Connecticut
SAM BROWNBACK, Kansas DANIEL K. AKAKA, Hawaii
PETE V. DOMENICI, New Mexico RICHARD J. DURBIN, Illinois
THAD COCHRAN, Mississippi ROBERT G. TORRICELLI, New Jersey
DON NICKLES, Oklahoma MAX CLELAND, Georgia
ARLEN SPECTER, Pennsylvania
Hannah S. Sistare, Staff Director and Counsel
Richard A. Hertling, Senior Counsel
Curtis M. Silvers, Professional Staff Member
Leonard Weiss, Minority Staff Director
Sebastian O'Kelly, Minority Professional Staff Member
Lynn L. Baker, Chief Clerk
C O N T E N T S
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Page
I. Background.......................................................1
II. Purpose of the Legislation.......................................7
III. Legislative History and Committee Consideration..................8
IV. Section-By-Section Analysis......................................8
V. Regulatory Impact Statement.....................................32
VI. Congressional Budget Office Cost Estimate.......................32
VII. Changes in Existing Law.........................................35
105th Congress Report
SENATE
2d Session 105-258
_______________________________________________________________________
THE GOVERNMENT SECRECY REFORM ACT
_______
July 22, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Thompson, from the Committee on Governmental Affairs, submitted the
following
R E P O R T
[To accompany S. 712]
The Committee on Governmental Affairs, to which was
referred the bill (S. 712) to provide for a system to classify
information in the interests of national security and a system
to declassify such information, reports favorably thereon with
an amendment in the nature of a substitute and recommends that
the bill as amended do pass.
I. Background
For centuries, governments have been preoccupied with
keeping secrets. Information is power, and those that have
access to it are powerful. The democracy of the United States
is founded, however, on the principle that the people are
sovereign and must be entrusted with the power of information
if they are to make informed choices and decisions.
Historically, the United States Government was perhaps the most
open of all governments. For example, even during the Civil
War, troop movements were often reported in the newspapers,
despite the efforts of military commanders to prevent the
publication of such reports.
The 20th century brought change to this historic openness,
especially as the United States began to play an increasingly
larger role in world affairs. The importance of preserving the
secrecy of sensitive information was emphasized by the British
interception of the famous Zimmerman telegram, which sealed our
nation's entry into the First World War. In 1917, during that
war, Congress enacted the Espionage Act. In the aftermath of
World War I and the Russian Revolution, fear of international
Communism ran deep. A domestic national security apparatus was
developed, and the Espionage Ace was used to target domestic
groups suspected of subversive activity.
The Second World War thrust the United States into the
forefront of world nations. The successful conduct of the war
depended on preventing the enemy from learning sensitive
information and war plans. Unlike the Civil War, elaborate
systems were put in place to guard against espionage and other
means by which the Axis powers could uncover military plans,
industrial production schedules, scientific developments and
experiments, cryptographic information, and any other
information that could help the enemy. Those in power knew the
importance of secrecy, because they also knew how dependent we
were on our success in learning sensitive information from our
enemies, through cryptographic or human intelligence sources.
Once World War Two ended, however, the secrecy system and
the bureaucracy that supported it did not recede. Our democracy
remained at war, although it had become a Cold War against the
Soviet Union, its allies, and its agents. And the stakes were
significantly greater than at any time in history, because we
had entered the nuclear age, and the threat of annihilation
hung over our nation and the world. A foreign intelligence
apparatus needed to be retained, and the government had to
continue to protect information, the release of which would
legitimately cause harm to the nation's security.
In order to promote the national defense, Congress enacted
in 1947 the National Security Act, which not only consolidated
our military into the Department of Defense, but established a
statutory basis for our nation's foreign intelligence system,
which had been developed by the military during the Second
World War and was preserved after the war by President Truman.
See 11 Fed. Reg. 1337 (February 5, 1946) (creation of National
Intelligence Authority). The National Security Act established
the Central Intelligence Agency and explicitly authorized its
director to protect intelligence sources and methods from
unauthorized public disclosure. Act of July 26, 1947, Section
102(d)(3), Pub. L. 80-253, 61 Stat. 495, 498. This
responsibility remains to this day. See 50 U.S.C. Sec. 403-
3(c)(6).
Acting pursuant to the authority of the National Security
Act and to his constitutional authority as Commander-in-Chief,
President Truman established the current form of the system for
classifying national security information in 1951 by issuing
Executive Order 10290. Since that time, except for nuclear
secrets, the system for protecting national security
information has been based on a series of executive orders.
Since President Truman, five successive executive orders have
modified the government's secrecy standards, and since 1978,
only 20 years ago, there have been three different executive
orders issued revising the handling of national security
information. The Committee understands that until it began its
consideration of S. 712, the Administration was considering
making additional changes to the executive order issued by
President Clinton just three years ago.
The development and implementation of a sound system for
protecting national security information need not depend
exclusively on executive orders. As an example, one need only
look to the Atomic Energy Act of 1954, 68 Stat. 940 (Aug. 30,
1954), currently codified at 42 U.S.C. Sec. 2161 et seq., in
which Congress established the policy and procedures for the
handling of information related to atomic energy. This system
attempts to balance the needs of national security with those
of scientific and technological development.
The national security apparatus and the system for
protecting national security information served the nation well
for 50 years. The world today is very different, however, than
it was in 1947 or 1951, or even 1989. The Cold War has ended.
The Soviet Union, its allies, and its client states collapsed.
The principles of democracy, liberty, the recognition of the
inalienable rights of man prevailed. In the wake of the Cold
War, we have entered a period of rapid globalization. Foreign
trade among nations is surging. And from the Atomic Age we have
moved to the Information Age. Computers store vast amounts of
information and communications systemsto make that information
immediately available around the world. No longer is information itself
the key to political, military, and economic dominance. With the vast
amounts of information available, dominance today depends on the
ability to analyze information, to determine and separate out what is
important from what is not, and to act on it. Improved analysis comes
not from suppressing information, but from making it available and
subjecting it to broad scrutiny.
While there is a need for greater openness, it would be
shortsighted to believe that as a nation we can give up
entirely on the need to protect sensitive information from
disclosure. The world remains dangerous, even if the source and
nature of the threats to our national security are different.
Some argue the world is even more dangerous today than it was
during the Cold War because of the greater instability. Along
with open trade in legitimate goods comes the smuggling of
drugs, weapons, including the potential for biological and
chemical weapons, and nuclear materials. Terrorist groups link
up with transnational criminal organizations and rogue nations
to attack our national interests and undermine world stability.
Ethnic and religious differences threaten the peace in many
parts of the world and local conflicts can always involve the
world's dominant power. Some nations continue to engage ours as
a potential enemy, economically and politically, if not always
militarily.
A strong U.S. presence, political, diplomatic, military, or
economic, is needed around the world to combat the forces of
international lawlessness. To support these efforts to promote
our vital national interests, our nation must continue to rely
on military and intelligence services that are second to none.
The need to protect sensitive national security information to
support these services remains.
To adapt to the changes in the world, the federal
government must reinvent the balance that has been in place
since the start of the Cold War. A new policy of protecting
national security information must recognize the new nature of
both the technological environment, with widespread access to
hitherto unimagined amounts of information in real time, and
the threat. The policy also needs to take account of the costs
and benefits of secrecy. While both can be difficult to
quantify, the Information Security Oversight Office has
estimated the total cost to the taxpayers of efforts to
preserve the security of sensitive national security
information to exceed $5 billion annually. As government
struggles to adjust to limited resources, it needs to evaluate
what portion of these costs continues to be warranted.
As bureaucracies have a tendency to be self-perpetuating
and to attempt to contort the missions and focus of government
in such a way as to invariably place themselves in the center
of its operations, Congress, the people's body, decided to
undertake to review the entire federal secrecy apparatus by
establishing the Commission on Protecting and Reducing
Government Secrecy (the Commission).
The Commission was authorized by Title IX of the Foreign
Relations Authorization Act for Fiscal Years 1994 and 1995,
signed into law by President Clinton on April 30, 1994. Pub. L.
103-236. It was charged by Congress with making recommendations
``to reduce the volume of information classified and thereby to
strengthen the protection of legitimately classified
information."
The twelve Commissioners (four Members of Congress, two
government officials, and six private citizens) were selected
jointly by the President and the congressional leadership.
Senator Daniel Patrick Moynihan, a former Vice Chairman of the
Senate Select Committee on Intelligence, served as Chairman of
the Commission and Representative Larry Combest, then-Chairman
of the House Permanent Select Committee on Intelligence in the
104th Congress, served as Vice Chairman. The other
congressional Commissioner were Senator Jesse Helms, Chairman
of the Senate Committee on Foreign Relations, and
Representative Lee Hamilton, Ranking Minority member of the
House Committee on International Relations and former Chairman
of the House Permanent Select Committee on Intelligence.
The other Commissioners brought a variety of experience and
expertise to the work of the Commission. These included former
Director of Central Intelligence and former Deputy Secretary of
Defense John M. Deutch; Martin C. Faga, former Director of the
National Reconnaissance Office and former Assistant Secretary
of the Air Force; Alison B. Fortier, former Special Assistant
to the President and Senior Director, National Security
Council; Ambassador Richard K. Fox, Jr., a retired career
Foreign Service Officer and former ambassador; Ellen Hume, a
journalist; Professor Samuel P. Huntington of Harvard
University; current Deputy Chief of Staff to the President John
D. Podesta; and Maurice Sonnenberg, a member of the President's
Foreign Intelligence Advisory Board.
The Commission was the first congressionally established
body to examine the issue of government secrecy in four
decades. The only prior body, the Commission on Government
Security, was convened in 1955-57. The recommendations of that
Commission did not alter significantly the basic structure and
underpinnings of the security system that had developed over
the preceding decade. The central finding of the 1957 report of
the Commission on Government Security, that there existed a
``vast, intricate, confusing and costly complex of temporary,
inadequate, uncoordinated programs and measures designed to
protect secrets and installations vital to the defense of the
Nation against agents of Soviet imperialism," was not markedly
different from the conclusions of the 1997 Report of the
Commission on Protecting and Reducing Government Secrecy.
The new Commission issued its unanimous final report on
March 3, 1997, after studying the issues in detail. The
Commission concluded that a new approach to secrecy, one which
takes into account the insight that secrecy is a form of
regulation, is needed. As the Commission's final report puts
it, ``Americans are familiar with the tendency to overregulate
in other areas. What is different with secrecy is that the
public cannot know the extent or the content of the
regulation." Overregulation is a continuing theme in American
public life. Secrecy would be included in that concern were it
not, by its very nature, highly resistant to public scrutiny.
Instead, it exists as a parallel regulatory regime with the
potential for significant damage if it malfunctions.
The Commission proposed that the system for classifying and
declassifying information, which for so long has been governed
by executive order, should be given a new statutory framework.
A statutory framework would provide for greater congressional
oversight and public awareness of the system governing
sensitive national security information. The secrecy system
would no longer be governed by the views of those charged with
implementing regulations.
In addition to recommending a statute to govern the secrecy
system outside of the atomic energy context, in which secrecy
is already governed by statute, the Commission recommended the
following:
Adoption of the concept of a life-cycle for secrets, to
enhance the understanding of classification and
declassification decisions and promote rational decision-
making. Information management practices should take into
account that information has a life span and must be treated
according to its stages within that life span. Some information
may only need to be protected for a few days, such as the
travel itinerary of a government official, which only requires
protection before the trip. Other information, however, may
require protection for generations.
Establishment of a national declassification center to
improve declassification procedures and coordinate how
information that no longer needs to be secret will be made
available to the public. The Commission reasoned that, if
secrecy is a form of regulation, declassification should be
seen as a form of deregulation. A national declassification
center would coordinate declassification throughout the
government, using guidelines established by the originating
agency. A national center for declassifying information could
use economies of scale to reduce the costs of declassification.
Establishment of a single, independent Executive Branch
office responsible for coordinating classification and
declassification practices and enhancing incentives to improve
such practices, in order to promote greater accountability. The
Commission found that the absence of adequate oversight
throughout the Executive Branch and by the Congress has
resulted in little accountability for classification decisions
and wide variation among different agencies in the application
of executive orders governing secrecy. Many of the problems
associated with the current system are management problems
which can only be addressed by a strong central office. Such an
office could ensure that classification and declassification
policies are treated as information management issues and not
merely extensions of security policy.
Improving the initial classification of information by
requiring classifying officials to weigh the costs and benefits
of secrecy and to consider additional factors in the decision
to make or keep something secret to ensure that classification
is used more efficiently. The Commission argued that, in
determining whether information should be classified, or should
remain classified, an official should weigh the costs
associated with keeping information secret. Classification
decisions should weight the vulnerability of the information,
the threat of damage from its disclosure, the risk of its loss,
its value to adversaries, an the cost of protecting it.
Issuance by the Director of Central Intelligence of a
directive concerning the appropriate scope of sources and
methods protection as a rationale for secrecy to clarify the
grounds for classifying information. As was noted above, under
the National Security Act of 1947, the Director of Central
Intelligence is charged with protecting intelligence ``sources
and methods." Information is often classified because it is
provided by an intelligence source or an intelligence method,
and not because of its content. It is usually the content of
the information which is the most useful to the pubic and to
historians; therefore, the Commission found that a more
thoughtful and discriminating approach to this issue is needed
to clarify the scope of and reasons for protecting sources and
methods in particular cases.
Standardization of security clearance procedures and
reallocating resource to those parts of the personnel security
system that have proven most effective in determining who
should or should not have access to classified information, in
order to promote the use of personnel security resources in a
manner that ensures more effective and efficient protection.
The current personnel security system is still designed to
prevent subversion by Communist agents, even though few people
come to work for the federal government with the intent to
commit espionage. Instead of focusing resources on extensive
initial security clearance investigations, the Commission
recommended that resources be allocated more evenly throughout
an employee's career, as there are many recent examples of
employees who only decided to commit espionage years after they
have entered the government. Additionally, many agencies
continue to insist on their own personnel investigations, and
do not accept those of other agencies. The Commission found
that a single system recognized by all agencies would have
significant personnel security resources.
Adoption of measures to standardize security practices in
special access programs to reduce redundancies and costs. The
Commission found that additional security costs imposed by
special access programs often fail to yield increased security
benefits and that, as a result, there is a need for greater
standardization of security practices in special access
programs.
Adoption of measures to focus greater attention and promote
increased cooperation on the means for protecting such systems
to promote greater awareness of the threats to automated
information systems. As the United States relies more and more
heavily on computer networks, those responsible for the
protection of national security information face new and
increasingly difficult challenges. The Commission found that
there are no standards for protecting and managing automated
information systems in the federal government, which reflects
the fact that the subject has not been thoroughly addressed.\1\
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\1\ The subject of the security of government information systems
and computers is a subject of enormous concern to the Committee on
Governmental Affairs, which has been holding a series of hearings on
the vulnerabilities of such systems in order to promote greater
understanding of the nature of the threat and to develop sense of
urgency among officials to address the shortcomings.
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Shortly after the Commission's final report was issued,
Senator Moynihan and Senator Helms introduced legislation to
implement the statutory recommendations of the Commission. That
bill was referred to the Committee on Governmental Affairs.
II. Purpose of the Legislation
The purpose of S. 712 is to provide a firm statutory basis
for the system of classifying information to preserve the
secrecy of information whose publication would be injurious to
the national security of the United States and to specify
procedures for the classification and declassification of such
information. The bill is premised on a simple concept: that the
balance of power among the separate branches of the federal
government is vital to the proper functioning and the
preservation of government of, by, and for the people. Our
liberties depend on the balanced structure created by James
Madison and the other framers of the Constitution. The national
security information system has not had a clear legislative
foundation, but, as has been noted above, has been developed
through a series of executive orders. It is time to bring this
executive monopoly over the issue to an end, and to begin to
engage in the same sort of dialogue between Congress and the
executive that characterizes the development of government
policy in all other means. Only through such a dialogue can the
people, through their representatives, evaluate the costs and
the benefits of the secrecy system, weight the resources spent
on the system, and decide which of the costs are worth bearing,
and in what manner to apportion government resources to
preserve, restrict, or expand the system.
In addition, the legislation is designed to promote
accountability, both by the government and by its officials
responsible for various aspects of the secrecy system.
Accountability is enhanced by openness, and is necessary to the
proper functioning of a democratic state. The bill would also
promote stability in the classification and declassification
process, which has known repeated changes under the series of
executive orders issued by different Presidents.
The legislation reported by the Committee on Government
Affairs would supplement the provisions of the National
Security Act of 1947, as amended, and the Atomic Energy Act of
1954, as amended, provide greater guidance to the executive
branch, and promote accountability, while preserving needed
flexibility, and more certainty to the American public. While
it might increase costs over the short term, these costs should
be minimal, as many of the bill's provisions are already in
effect through Executive Order 12958. The long-term impact of
the legislation is to reduce costs the government must
currently bear in creating secrets and protecting them by
reducing the number of secrets created, while enhancing the
protection afforded these fewer secrets. The bill is also
intended to reduce the intangible cost to our society and
democracy from the cynicism that may be caused by official
secrecy. The legislation is limited to reforming the
information security system, and does not address personnel
security and related issues in any way.
III. Legislative History and Committee Consideration
On May 7, 1997, S. 712 was introduced by Senator Daniel
Moynihan (D-NY) and Senator Jesse Helms (R-NC). The legislation
reflected the consensus recommendations of the Commission. That
same day, the Committee held a hearing to review and consider
the final report and recommendations of the Commission,
including its legislative recommendations. At this hearing, the
Committee received testimony from the congressional members of
the Commission, Senator Moynihan, Senator Helms, Representative
Larry Combest (R-TX), and Representative Lee Hamilton (D-IN).
The Committee also heard testimony from the Honorable Lawrence
Eagleburger, former Secretary of State, David Wise, an author
and journalist; and Alden V. Munson, Jr., senior vice president
and group executive of the Information Systems Group of Litton
Industries, Inc., a government contractor involved in
classified programs.
On March 25, 1998, the Committee held a second hearing on
the classification and declassification system, specifically to
consider S. 712. The Committee received testimony from Edmund
Cohen, director of information management, Central Intelligence
Agency; J. William Leonard, director of security programs,
Department of Defense, A. Bryan Siebert, director of the Office
of Declassification, Department of Energy; Steven Garfinkel,
director of the Information Security Oversight Office, National
Archives and Records Administration; T. Jeremy Gunn, executive
director of the John F. Kennedy Assassination Records Review
Board; and Steven Aftergood, director of the Project on
Government Secrecy, Federation of American Scientists, a
private organization that promotes openness in government.
At its June 17, 1998, business meeting, the Committee
marked up S. 712. With a quorum present, the Committee
considered an amendment in the nature of a substitute offered
by Chairman Thompson and Senator Collins. The amendment was
adopted by voice vote with no Member of the Committee
dissenting. After agreeing to the substitute, the Committee
favorably reported S. 712, as amended, by voice vote with no
Member of the Committee dissenting.
IV. Section-by-Section Analysis
section 1. short title
As introduced, S. 712 was entitled the ``Government Secrecy
Act." The substitute amendment adopted by the Committee alters
the short title to the ``Government Secrecy Reform Act" to
express more accurately the purpose of the law to reform the current
secrecy regime operated pursuant to executive order.
section 2. classification and declassification of information
This section is the core of the Act. It provides a clear
statutory basis for the classification and declassification of
information in order to protect national security.
A. General principle
Section 2(a). As reported, the legislation balances the
constitutional duties of the executive and legislative branches
of the government by providing a legislative framework for
classification and declassification policies, while allowing
the President to define the specific categories of information
that may be classified and the procedures for doing so. The
Committee notes that the Atomic Energy Act of 1954 provides
considerably less deference to presidential authority than this
bill by specifically defining what information shall be
classified as Restricted Data and Formerly Restricted Data.
The bill would establish the general principle that
information may be classified only when there is a demonstrable
need to do so in order to protect the national security of the
United States. Information may not be classified on the basis
of a hunch or a whim. Information may only be classified if
there is a need to prevent its release and that need can be
demonstrated: there must be a reasoned decision. It is to guide
this reasoned decision-making that the Act specifies the
procedures to be followed and criteria to be applied in making
the decision to classify and declassify information. Through
the application of the procedures and standards set out in the
Act, it is the Committee's expectation that less information
will be classified, more information will be declassified in a
more timely manner, and better decisions about what information
actually needs to be protected will be made.
B. Procedures for classification and declassification of information
Section 2(b). As reported, the legislation adopts the
recommendation of the Commission on Protecting and Reducing
Government Secrecy to require the President, to the extent
necessary, to establish categories of information that may be
classified and procedures for classifying and declassifying
information. These categories and procedures are similar to the
categories of classified information and the procedures for
classification and declassification encompassed in the series
of Executive Orders that have been issued governing the
handling of national security information. The Committee does
not expect that the President would have to modify, alter, or
amend the categories and procedures currently laid out in
Executive Order 12958, except to the extent changes are
required by the terms of this legislation. The authority to
promulgate categories and procedures reflects the authority the
President enjoys through the exercise of his constitutional
authority as Commander-in-Chief.
The categories and procedures for classification and
declassification must be developed through notice and comment
procedures. The Committee recognizes that the Administrative
Procedure Act and its notice and comment provisions do not
apply to the President. Franklin v. Massachusetts, 505 U.S.
788, 800-01 (1992). The Committee believes, however, that in
this area the President should solicit input from interested
persons and organizations with respect to classification
categories and classification and declassification procedures.
The substitute requires the President to promulgate final
categories and procedures no later than 60 days after the
proposed categories and procedures are published. The
substitute also requires that if the President ever seeks to
modify these categories and procedures, he must do so following
the same notice and comment procedures. Pursuant to section
6(b) of the substitute, no act or failure to act in accordance
with the provisions of the substitute are subject to judicial
review.
Once the President promulgates categories and procedures,
the head of each agency of the Executive Branch shall establish
standards and procedures to implement the presidential
categories and procedures to permit each agency to classify and
declassify information. The agency standards and procedures
will guide each agency's implementation of the Act. Because
different agencies handle different types of information with
varying security needs, agencies are given the leeway to judge
for themselves how to apply the President's categories and
implement his procedures. Clearly, the needs of an agency that
does not create or handle significant amounts of classified
information will differ from agencies like the Central
Intelligence Agency or components of the Department of Defense,
which produce and handle massive amounts of classified
information. Each agency may not however, have its own separate
classification and declassification system but must adhere to
the system promulgated by the President in implementing this
legislation. The Director of the Office of National
Classification and Declassification Oversight, created by this
legislation, will be responsible for ensuring that agency heads
do not overstep--or evade--the intent of this bill's
provisions.
Final agency standards and procedures must be published in
the Federal Register, but agencies do not need to publish their
proposed standards and procedures for comment prior to
publication of the final version. Final agency standards and
procedures shall be published not later than 60 days after the
publication of the President's final categories and procedures.
The limited amount of time provided to agencies reflects the
Committee's assumption that few significant changes from
current agency practices under Executive Order 12958 will be
required by the new Act. Pursuant to section 6(b) of the
substitute, no act or failure to act in accordance with the
provisions of the substitute are subject to judicial review.
The substitute specifically directs each agency to ensure
that its procedures include mechanisms to minimize the risk of
the inadvertent or inappropriate declassification of
information. Such procedures will be particularly important in
light of the balancing test for classifying and declassifying
information that this legislation requires of agencies. In
order to minimize the risk of improper disclosure, agencies
will, in conjunction with the classification guides they will
provide to their staff, have to adopt procedures to prevent
low-level employees from making unauthorized classification and
declassification decisions. The Committee notes inthis context
that nothing in the legislation amends or limits the effect of federal
criminal prohibitions on disclosing national defense information
without authorization as provided in the Espionage Act of 1917, Act of
June 15, 1917, Pub. L. 65-24, 40 Stat. 217, now codified at 18 U.S.C.
Sec. 793. See also 50 U.S.C. Sec. 421.
The substitute also directs the President to require the
head of each agency with original classification authority, as
distinguished from derivative classification authority, to
produce written guidance on classification and declassification
of information for purposes of guiding the derivative
classification of information.\2\ Some agencies, like the
Central Intelligence Agency, currently produce classification
guidance, in the form of a classification guide, to assist its
own officials and those of other agencies and contractor
personnel in determining whether information must be
derivatively classified. A classification guide is "a
documentary form of classification guidance issued by an
original classification authority that identifies the elements
of information regarding a specific subject that must be
classified and establishes the level and duration of
classification for each such element." Executive Order 12958,
section 2.1(c). Not all agencies which classify information,
however, currently use such guides.
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\2\ Derivative classification is the act of incorporating,
paraphrasing, restating, or generating in new form classified-source
information. When government employees or government contractors with
appropriate security clearances prepare material based on originally
classified information, or by the use of a classification guide, their
product becomes derivatively classified.
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Requiring the preparation of classification guides will
help those making classification decisions do so in a
consistent manner which more accurately reflects the threats
posed by disclosure. Establishing common principles that are
applied in a standard fashion throughout each agency will help
ensure that classified information is treated appropriately
throughout its life cycle. The Committee believes such written
guidance from agencies with original classification authority
will not only make derivative classification decisions more
consistent throughout the government, but may aid in limiting
the amount of information derivatively classified. Such
guidance will also subsequently assist in making more
consistent and appropriate decisions on declassification,
especially as agencies implement the balancing test for
classifying information required by this legislation.
Detailed written guidance will become even more important
in the regime established under the legislation to require a
balancing of interests in making classification and
declassification decisions. Because such written guidance must,
by its very nature, address and discuss classified information,
it may itself be treated as classified under the Act. Again,
pursuant to section 6(b) of the substitute, no issue related to
the issuance of the written guidance or to the substance of the
guidance itself is subject to judicial review.
C. Standards for classification of information
Section 2(c). The Federal government has a legitimate
interest in maintaining secrets in order to fulfill its
Constitutional charge to "provide for the common defense." At
the same time, this interest must be balanced by the public's
right to be informed of government activities in order that the
public may intelligently direct the activities of the
government through their elected representatives.
The Commission on Protecting and Reducing Government
Secrecy found a secrecy system out of balance. Consequently,
information needing protection does not always receive it,
while innocuous information often is or remains classified. The
Commission found that "[t]he best way to ensure that secrecy
is respected, and that the most important secrets remain
secret, is for secrecy to be returned to its limited but
necessary role. Secrets can be protected more effectively if
secrecy is reduced overall." Unless the classification system
focuses on that which is most genuinely needs protection for
disclosure, the fact that information is classified serves as
less of a deterrent to its unauthorized release.
The initial decision to classify is in many ways the most
important of this process. A failure to protect sensitive
information poses great and obvious risks, while a decision to
classify something unnecessarily can be costly in several ways.
First, there are the costs of storing, handling, reevaluating,
and declassifying the information. Then there are the
intangible costs. Too much secrecy can erode public faith in
the institutions of government and prevents the public from
participating in informed debate. It can also have significant
consequences for the defense and security of our country when
policy makers are not fully informed because secrecy constrains
the flow of information.
The system lacks the discipline of a statutory framework to
define and enforce the proper uses of secrecy. This legislation
is intended to provide such a legislative framework. The bill
will enable greater oversight of the classification and
declassification system to counter the inherent tendency of
individuals in government agencies, like any large
organization, to keep secrets. At the same time, the President
will retain broad authority and discretion to establish and
administer the details of the system, consistent with legal
principles embodied in the statute.
As noted above, the most recent report of the Information
Security Oversight Office indicates that the number of
government secrets is not being reduced. In fact, the report
notes a 62 percent increase in classification actions in 1996,
and it estimates the direct costs of secrecy at more than $5.2
billion for that same year. Notably, that figure does not
include the presumably substantial secrecy costs incurred by
the CIA; those remain classified. Nor does it account for the
vast indirect costs of government secrecy--what economists
might term "transaction costs" and "opportunity costs"--
that cannot be quantified precisely. While the Administration
has declassified approximately 400 million pages of previously
classified information in the last two years, there remain 1.5
billion pages of documents 25 years or older still classified.
To paraphrase Justice Potter Stewart's opinion in the Pentagon
Papers case: when everything is secret, nothingis secret. See
New York Times Co. v. United States, 403 U.S. 713, 729 (1971). And this
aphorism supports the notion that limiting the amount of classified
information so that only information truly needing protection from
disclosure is classified will promote greater protection for that
information than is currently the case.
Classifying officials must also be aware that
classification means that resources will be expended throughout
the information's life cycle to protect, distribute, and limit
access to information that would be unnecessary if the
information were not classified. Resources have been wasted, as
Senator Helms testified to the Committee, when Members of
Congress are given classified briefings which reiterate
"everything that was in the New York Times and the Washington
Post that morning." Considering sensitive information in terms
of its life cycle helps illuminate the inconsistencies between
the protection required by various types of government
information and the protection it actually receives.
At the beginning of the life cycle of potentially sensitive
government information, the classification system is the
vehicle which provides protection. The current system, however,
is notable for the absence of clear standards to gauge the need
for and type of protection required. At the end of that
information's life cycle, declassification procedures currently
fail to distinguish between sensitive information and that
which no longer requires further protection.
Protection challenges differ as information moves through
its normal life cycle. There are times when there is no doubt
that secrecy is urgently needed. In those cases, no cost may be
too high. There are also many cases in which secrecy creates
redundancies, squanders opportunities, and wastes resources.
The costs that inevitably come with secrecy require a careful
balance in making classification and declassification
decisions.
Under Executive Order 12958, as under prior executive
orders, the initial decision to classify is based solely on the
potential damage to the national security to the exclusion of
other factors such as the value of the information to the
public, the risks incurred from its unauthorized disclosure,
and the cost of its protection. Since the original
classification decision is the first and one of the most
important steps in the life cycle of a document, more emphasis
must be placed on establishing a more thoughtful process to
decide whether information should be classified in the first
place. This will entail more rigorous oversight by the Office
of National Classification and Declassification Oversight,
created by this legislation. Additionally, it will entail
expanding and improving training for classifying officials.
The bill permits classification only if the harm to
national security "outweighs the public interest in disclosure
of such information." This requires an official to perform a
"balancing test" in which the need to protect national
security is weighed against the public's interest in open
government.
Under Executive Order 12958, decisions to classify new
information are made by officials with Original Classification
Authority. Currently there are 4,420 officials with Original
Classification Authority, the only individuals designated,
either by the President or by selected agency heads, to
"classify information in the first instance."
Those with Original Classification Authority determine what
information, if disclosed, could reasonably be expected to
cause damage to the national security, and must be able to
identify and describe the damage. The information must be owned
by, produced by, for, or under the control of the United States
Government. According to the Information Security Oversight
Office, there were 105,163 original classification decisions in
1996 (7 percent Top Secret, 53 percent Secret, and 40 percent
Confidential). The Information Security Oversight Office also
reports 5,684,463 derivative classification actions in 1996 (7
percent Top Secret, 61 percent Secret, and 32 percent
Confidential). Ninety-four percent of all classification
actions are derivative classification decisions, but these
decisions are less important that the discretionary, original
classification decisions, which form the basis for all
derivative classification determinations.
While the bill is silent about the number of Original
Classification Authorities, it requires that those making
original classification decisions continue the directive of
Executive Order 12958 of identifying themselves on the
information being originally, as distinct from derivatively,
classified. The requirement is designed to foster a sense--and
the reality--of accountability in officials with original
classification authority.
Section 1.7(a)(5) of Executive Order 12958 also requires
original classifiers to justify their decisions by providing a
"concise reason for classification." The bill alters the
current standard by requiring a "detailed justification" of
an original classification decision. The Committee believes
that a detailed explanation at the time of original
classification decision is warranted by the importance of the
decision. Having a detailed explanation at the outset will also
enhance the security of the information throughout its life
cycle by allowing those with access to it to understand the
nature of the threat classification was designed to prevent.
Finally, a detailed justification will reduce the costs
associated with declassifying the information by enabling later
decision-makers to determine with greater ease than at present
whether the information continues to require protection from
disclosure.
The bill does not address the levels of protection which
classified information should receive, leaving this
determination to the President, consistent with historic
practice. Under Executive Order 12958, the three levels
distinguish the amount of potential damage if the information
is released. If the unauthorized disclosure of information
could potentially cause "damage," it may be classified
Confidential; if "serious damage," it may be classified
Secret; and if "exceptionally grave damage," it may be
classified Top Secret. The Joint Security Commission has
recommended that the three traditional levels of
classification--Confidential, Secret, and Top Secret--be
replaced by a single classification level with two degrees of
physical protection. The Commission on Protecting and Reducing
Government Secrecy found no evidence that such a change would
reduce the amount of classification, though it might simplify
the system. The Committee would encourage the Director of the
Office of National Classification andDeclassification
Oversight, which would be created by this legislation, to undertake a
systematic study of classification levels to determine whether to adopt
the recommendation of the Joint Security Commission.
As with original classification decisions, the legislation
would impose similar requirements on agency officials or
contractor personnel who make derivative classification
decisions. Anyone derivatively classifying information would
have to identify himself or herself. The purpose again is to
foster a sense of accountability. Because derivative
classification determinations ought not require any significant
analysis of the need to classify the information, the Act would
require only that a "concise explanation" of the decision to
classify information derivatively be provided. The requirement
for a concise explanation will generally be satisfied by simple
reference to the original classification decision or
classification guidance, or by reference to the appropriate
national security criteria of the Act's balancing test that
outweigh the interests of the public in disclosure of the
information. Nothing in this provision is intended to give a
recipient of classified information independent authority to
declassify that information.
The most significant change from historical and current
practice that the legislation would promote in the
classification process is the implementation of a balancing
test to determine the propriety of classifying particular
information. Under each of the executive orders under which the
classification system operated, the sole factor that
classifiers had to take into consideration was the potential
harm to national security from the disclosure of the
information. There was no balancing test; only one side of the
equation was ever considered. The Committee believes that it is
appropriate for officials making classification decisions to
consider not only the potential harm to national security from
disclosure, but the public interest in disclosure as well.
To this end, the bill would impose an explicit requirement
that information not be classified unless "the harm to
national security that might reasonably be expected from
disclosure of such information outweigh the public interest in
disclosure of such information." The bill also makes it clear
that if agency officials have "significant doubt" about
whether the harm to national security outweighs the public
interest in disclosure, the information should not be
classified. The Committee believes that in many cases there
will be little doubt in the application of the balancing test:
either the need for secrecy is evident and compelling and
clearly outweighs any public interest in disclosure or the
public interest in disclosure clearly outweighs the need for
secrecy. In many other cases, however, there will be many
shades of gray in the application of the balancing test. The
bill does not direct any particular outcome in any specific
case. If there is doubt, the agency official may still exercise
reasoned discretion. Only the existence of "significant
doubt" in the application of the balancing test will preclude
the classifying official from classifying the information.
The introduction to classification and declassification
processing of a balancing test is vital. As the Commission on
Protecting and Reducing Government Secrecy cogently argued,
classification is a type of government regulation. As with all
regulation, it imposes costs and achieves benefits. By looking
only at the benefit side, secrecy policy has skewed the
equation and resulted in over-classification, which means the
system is too costly. Decison-makers in agencies must be
required to consider and address the costs of their decisions
if they are to make better, more informed judgments, both in
each particular case and at the macro-level as well. Confronted
with the explicit requirement that classifying officials
consider the costs as well as the benefits of each decision
should lead to better decisions, so long as the balancing test
is actually applied in good faith.
As introduced, S. 712 contained a balancing test,
specifying simply that "the agency official making the
determination shall weigh the benefit from public disclosure of
the information against the need for initial or continued
protection of the information." No indication was given as to
what criteria should be considered.
The Committee concluded that any effort to put the system
for protecting our national security information on a statutory
footing should incorporate an enumeration of the general
factors to be considered in making classification and
declassification decisions. Specifically, the Committee
believes that requiring agency officials to consider "costs"
and "benefits" without providing them with any standards to
govern the exercise of such judgment would be unfair, would
shirk the responsibility of Congress to specify the national
policy of the United States, and would risk opening the door to
capricious and even dangerous decision-making in this important
arena. Accordingly, the Committee carefully spelled out the
various factors that must be considered with regard both to the
"costs" and to the "benefits" of disclosing information.
This articulation of discrete "cost" and "benefit" criteria
was an integral part of the amendment in the nature of the
substitute amendment adopted by the Committee.
The Committee believes that this enumeration strikes an
appropriate balance. By spelling out what factors must be
considered in classification and declassification decisions,
the Committee substitute does not predispose any particular
outcome in any particular classification or declassification
determination. The statutory criteria make clear what potential
"costs" and "benefits" must be considered, but no effort
has been made to define how much weight any one factors should
have vis-a-vis another. (Such weights, the Committee
anticipates, will depend heavily upon the specific nature of
the information in question and the security environment at the
time of decision.) The core responsibilities for such decision-
making remain, in other words, firmly lodged in the executive
branch: agency officials may apply the full benefit of their
knowledge and experience to classification and declassification
decisions, and the last word in adjudicating disputes over such
initial classification determinations is left firmly in the
hands of the Commander-in-Chief.
This general approach has ample precedent in U.S. national
security law and regulation, with analogous--indeed, in some
respects, even more specific--enumerations having been employed
in establishing the Restricted Data classification under the
Atomic Energy Act, in setting declassification guidelines for
the John F. Kennedy Assassination Review Board, and in
articulating non-statutory executive branch policy for
declassification determinations under Executive Order 12958. As
befits an effort to provide a statutory framework for the
entirenational security information control system, the
Committee substitute for the original language of S. 712 is more
specific with regard to discrete "cost" and "benefit"
considerations than are these analogues, but its underlying insight is
no different.
In sum, these enumerated criteria perform the invaluable
function of clearly setting forth Congress' determination as to
what criteria may appropriately be considered in classification
and declassification decisions--and, implicitly, what criteria
may not. The Committee substitute leaves to agency expertise,
insulated from judicial review, the particular weighing of one
factor against another in each case, but it provides very clear
guidance with regard to what factors must be considered in such
a calculus.
The American system of governance is predicated upon the
existence and maintenance of a system of elaborate checks and
balances intended to harness the ambitions of one branch of
government in checking the ambitions of another. Particularly
given the executive branch's continuing responsibility for
exercising judgment in particular classification and
declassification decisions, it is necessary and appropriate
that Congress establish broad national guidelines to ensure
that agency officials remain clearly focused upon legitimate
criteria. This should improve both the quality and the
consistency of classification and declassification decisions
over time.
Additionally, the Committee anticipates that in providing
such statutory standards, S. 712 will function as a public
document, a national statement of principles about how a free
country should attempt to balance the requirements of security
against the imperatives of democracy and accountability. It is
not sufficient that our national security information control
system be rational and effective in this regard: it must also
be understood to be so.
By definition and design, the system within our government
that manages classified information is highly resistant to
outside inspection and public accountability. Precisely because
classification and declassification determinations are
reviewable only within the executive branch, it is important
that the law mandate that these decisions be structured around
a clear framework of principle visible to all. By writing
specific classification and declassification criteria into
statutory form, the Committee hopes to help reassure Americans
that the national security information system is indeed a
legitimate one worthy of their trust and continued support.
The criteria set out in the substitute that are to be
employed in evaluating the potential harm to national security
that might reasonably be expected from disclosure are taken
directly from section 3.4(b) of Executive Order 12958. These
criteria are generally consistent with the standards that have
been employed in the series of executive orders that have
governed the classification system. The Committee is of the
view that the implementation of the bill's provisions will be
readily facilitated by taking the national security criteria
directly from the current Executive Order, as agency officials
will have an understanding, based on past practice, of the
content of the criteria and how to apply them.
The bill would enable classifying officials to consider
whether disclosure of the information in question would:
Reveal the identity of a confidential human source, or
reveal information about the application of an intelligence
source or method, or reveal the identity of a human
intelligence source when the unauthorized disclosure of that
source would clearly and demonstrably damage the national
security interests of the United States. This criterion would
protect intelligence sources and methods, whose protection is
guaranteed by 50 U.S.C. Sec. 403-3(c)(6). This factor focuses
on whether the information reveals a human source, irrespective
or whether that source's life or family would be endangered, as
the mere disclosure of a human source might chill the ability
of the government to find human sources in the future. This
chilling effect could exist whether or not there is any
potential harm or threat to the source or the source's family.
The Committee assumes that the human intelligence sources
protected by this provision are those who provide information
directly to the United States government. Human intelligence
sources who provide information to foreign governments that is
made available to the United States by that government would be
protected by a separate provision of the bill. With respect to
non-human intelligence sources and methods, the provision would
only allow consideration of the application of this factor to
the specific information at hand, rather than, for example,
consideration on a source-by-source or method-by-method basis.
This limitation is consistent with the bill's goal of limiting
classification decisions only to those cases in which secrecy
is warranted by the individual facts relevant to that decision.
Accordingly, the Committee does not believe that this
limitation will impinge on the executive in such a way as to
prevent or discourage the protection of genuinely sensitive
information.
Reveal information that would assist in the development or
use of weapons of mass destruction. The threat posed by
nuclear, chemical, or biological weapons has been of the utmost
concern to the United States for many years. Threats from such
weapons may actually be increasing today, as more and more
countries develop such weapons and the means to deliver them.
The Secretary Committee assumes that the development or use of
such weapons anywhere is a threat to the national security of
the United States and expects that this provision will be
interrupted broadly.
Reveal information that would impair cryptologic systems or
activities by preventing the effective use of such systems or
activities in the future. There are few matters more sensitive
than these. The United States needs to be able to detect,
intercept, and interpret communications from around the world.
It is essential that such capabilities be preserved. The
Committee notes that this provision seeks to protect not any
particular method or activity, but rather to protect the
ability to employ particular systems or activities in the
future.
Reveal information that would impair the application of
state-of-the-art technology within a United States weapon
system. This provision protects primarily military
technologicalsecrets. The United States spends billions of
dollars to develop cutting-edge technology to give our military
personnel the best possible prospect of accomplishing their missions
safely and effectively. Our military dominance depends more and more on
high technology, especially as the size of our military forces shrinks.
Foreign nations could save billions in their own development costs and
learn how to defeat weapons systems if this factor were not considered.
Unlike the provision protecting intelligence sources and methods, this
one applies only to "state-of-the-art technology."
Reveal actual United States military war plans that remain
in effect. This provision is limited to "actual" war plans
that remain in effect. This provision will cover contingency
plans and alternative planning that are in effect.
Reveal information that would seriously and demonstrably
impair relations between the United States and a foreign
government, or seriously and demonstrably undermine ongoing
diplomatic activities of the United States. This provision is
designed to allow the executive branch maximum flexibility in
conducting the international relations of the United States.
The Committee does not believe it possible to enumerate the
scope of potential threats to U.S. relations with foreign
governments. The provision does not, however, give unlimited
discretion to agency officials to protect information from
disclosure simply because it may involve a foreign government.
The information must seriously impair U.S. foreign relations in
order for this factor to weigh against disclosure. In addition,
the impairment must be demonstrable, but reasonable speculation
would satisfy this standard (indeed, it would have to, for
nothing can be demonstrated unless it has already occurred).
The Committee believes that this provision may be read broadly
enough to protect from disclosure any information received by
the United States from a foreign government, if its disclosure
would seriously impair U.S. relations with that or another
foreign government. This criterion also provides, in the
disjunctive, that the government may protect from disclosure
information whose disclosure would adversely affect ongoing
diplomatic activities of the United States. Here, the crucial
limitations is that the activities must be ongoing. Because the
provision does not define "diplomatic activities," this
limitation may be read broadly to sweep within its gambit a
wide range of activities that implicate the foreign relations
of the United States, so long as those activities are
"ongoing."
Reveal information that would clearly and demonstrably
impair the current ability of the United States to protect the
President, Vice President, and other officials for whom
official protection services are authorized. This provision is
limited to preserving the current ability of the Secret
Service, the Bureau of Diplomatic Security, and other federal
entities to protect designated federal officials or others for
whom protection services are, in the interests of the United
States, authorized. The Committee intends again that the
limitation to "current ability" be read in a common sense,
functional way so as not to require that particular means of
protection be disclosed if those means may be reemployed in the
future.
Reveal information that would seriously and demonstrably
impair current national security emergency preparedness plans.
This provision is designed to ensure that potential enemies,
either foreign or domestic, are not provided with information
that would permit them to avoid or evade emergency preparedness
plans so as to inflict damage or harm as a result of the
disclosure of the information.
Reveal information whose disclosure would violate a statue,
treaty, or international agreement. The Committee intends that
in this instance the term "international agreement" is
intended to cover a formal agreement, not rising to the level
of a treaty, entered into by the United States and a foreign
government or several foreign governments or between the United
States and a multilateral organization, and not simply an
informal agreement between an official of the United States and
an official or one or more foreign governments or entities.
The Committee expects that these criteria will be applied
in a flexible and functional manner in weighing whether
information must be protected from disclosure. If disclosure
would impair the ability of the United States and its officials
to protect national security by accomplishing the
particularized goals recognized by each criterion, that harm
must be given appropriate weight when balanced against the
public interest in disclosure.
Those national security criteria that only protect
information of "current" usefulness are also to be read in
this light to protect the ability of the government to carry
out those functions. The Committee intends that historical
information not be covered by these national security criteria,
if that historical information is no longer need to fulfill the
recognized function. Consider the following example. The
President of France visits New York and stays at a hotel.
Federal agencies are responsible for ensuring his security and
make a wide variety of plans for security, including a number
of contingency plans to evacuate him from the hotel. When the
President of France departs safely, those contingency
evacuation plans may still be classified even though the plans
are not longer "current," because they remain functionally
useful because the following year the Prime Minister of Great
Britain may visit New York and stay at the same hotel. Agency
officials will have to decide whether these plans remain
"current." The decision is left to their reasoned discretion.
On the other hand, the travel itinerary of a high government
official may be sensitive at the time of the trip but no longer
need classification after the trip is complete.
While these national security criteria are taken directly
from Executive Order 12958, the public interest criteria have
been developed by the Committee after careful consideration.
These criteria are also intended to be read with flexibility to
promote disclosure and openness and with recognition of their
functional impact.
The factors that the bill would allow to be considered in
gauging the public interest in disclosure of information,
either at that time of its proposed initial classification or
at the time of its proposed declassification, are broader and
less clearly defined than the national security factorsbecause
they do not enjoy a lengthy history of development and practice.
Because of their breadth, however, agencies will have wide discretion
in their interpretation. The Committee expects that agencies will
interpret these factors in ways consistent with the spirit of openness
that generated them.
The criteria agencies will have to consider in evaluating
the public interest in disclosure of information and balancing
these criteria with the national security criteria are:
Whether or not disclosure would better enable citizens of
the United States to hold government officials accountable for
their actions and policies. The primary purpose of this
criterion is accountability. Officials and agencies today can
too easily hide an embarrassment or failed policy by
classifying information surrounding it on the basis of some
trivial national security interest. Accountability of
government officials is the core of democracy. Requiring agency
officials to consider this democratic interest will make them
more mindful of the basic purposes of the government: to carry
out the will of the majority, consistent with the Constitution
and laws of the United States.
Whether or not disclosure would assist the criminal justice
system in holding persons responsible for criminal acts or acts
contrary to the Constitution. The rule of law demands that
those who break the law be punished for it. This criterion is
already accommodated to some extent by the Classified
Information Procedures Act (CIPA), which permits criminal
prosecutions to go forward against defendants even when
information relevant to the prosecution is classified. As a
result of the CIPA, agencies have already had some experience
and familiarity in balancing the need to protect information
from disclosure against the need to proceed with criminal
prosecution, so this criterion should be readily integrated
into agency classification practice.
Whether or not disclosure would assist Congress or its
committees in conducting oversight of the executive branch or
in informing itself of executive branch policies and activities
in order to carry out its legislative responsibilities. This
criterion should not be interpreted in any way to limit or
restrict the ability of any committee or subcommittee of either
House of Congress, or any Member of Congress or United States
Senator to gain access to classified information. See also
section 6(a) of S. 712 and the relevant discussion in this
report. There are statutory requirements that certain
classified intelligence information be provided to relevant
committees of both Houses of Congress. See, e.g., 50 U.S.C.
Sec. 413 et seq. This criterion is not designed to affect the
ability of Congress to have such access. Rather, it is designed
to allow Congress to discuss certain information openly by
getting executive agencies to consider the legislative
responsibilities of Congress and the need for an informed and
open debate to carry out those responsibilities in determining
whether to classify or declassify information.
Whether or not disclosure of the information would bring
about any other significant benefit, including an increase in
public awareness or understanding of the activities of the
federal government or an enhancement of government efficiency.
This criterion is intended to allow the President, executive
agencies, the Office of National Classification and
Declassification Oversight, and the Classification and
Declassification Review Board broad latitude to decline to
classify information or to declassify information if there is a
public interest in disclosure not otherwise covered by the
other public interest specified in the Government Secrecy
Reform Act.
None of these criteria, either alone or in conjunction with
another, will trump the applicable national security criterion
or criteria in any particular case. The legislation does not
dictate any particular classification or declassification
decision in any specific instance. The appropriate weight to be
accorded each criterion in any specific case is left to the
head of the agency with classification authority over the
information, as is the outcome of the balancing process. The
legislation seeks to focus agency discretion on the most
relevant factors, but no bill can dictate the proper outcome in
any particular situation, and this bill does not attempt to do
so. Agencies will be left with broad discretion, free from
judicial scrutiny, to classify and declassify information. The
Committee expects and assumes that agency officials will act in
good faith to implement the provisions of this legislation,
subject only to review by other executive branch officials,
also acting on behalf of the President, the Director of the new
Office of National Classification and Declassification
Oversight, and the members of the Classification and
Declassification Review Board.
D. Standards and procedures for declassification of information
classified under the act
Section 2(d). In addition to establishing new procedures
and standards for classifying information, the legislation
provides procedures and a time table for declassification of
information or categories of information classified pursuant to
the Government Secrecy Reform Act. The declassification
procedures set out in detail in section 2(d) of the legislation
do not apply to information classified pursuant to executive
order or other authority. The time-table established by this
legislation is largely based on, and tracks to a significant
extent, the time-table established under Executive Order 12958.
Because agencies are already implementing similar time tables
for review and declassification of information, the legislation
will impose few additional costs and burdens not already
required of agencies.
Section 2(d) sets out the generally applicable time-table
for declassifying information or categories of information. Any
information classified pursuant to the Government Secrecy
Reform Act may not remain classified ten years after the date
of the original classification of the information. Subsequent
derivative classifications of the same information do not start
the ten-year clock running anew. Therefore, information must be
declassified ten years after its original classification. There
are three exceptions provided to this general rule.
The first exception to the ten-year rule provides that
information or categories of information may be declassified
less than ten years from the date of the original
classification. For information to be declassified earlier than
ten years, the classifying official must provide
fordeclassification as of a specific date or event earlier then ten
years after the original classification. This exception is designed to
cover information that is classified for a specific purpose, or in
anticipation of a specific event that is known at the time of the
original classification.
To facilitate the determination of presumption
classification dates, paragraph 7 of this subsection of the
bill requires that every classification decision be accompanied
on the document by a specification of the date or event on
which the information may be declassified.
The second exception to the ten-year presumptive
declassification rule in the bill would permit the classifying
official to delay the declassification of information or
categories of information at the time the information is
classified until 25 years from the date of classification.
Thus, life the first exception, this one is to be invoked at
the time of the classification decision, and not at the time
the information or category of information is reviewed or
considered for declassification. This provision is intended to
cover certain discrete types of information that, at the time
it is classified, the classifying official is certain will not
be ready for declassification in ten years. The Committee
expects that this exception will cover only a narrow category
of classification decisions. This provision is the exception to
the ten-year rule; it should not become the rule. In order to
limit the use of this exception to those circumstances in which
it is warranted, the bill requires that any decision at the
time of classification to postpone declassification to 25 years
must be made by the head of the agency, and not by a
subordinate agency official. In doing so, the head of the
agency must determine that there is no likely set of
circumstances that would permit the declassification within ten
years. Having made that determination, the head of the agency
must obtain the concurrence of the Director of the Office of
National Classification and Declassification Oversight, subject
to an appeal to the Classification and Declassification Review
Board. Finally, if the Director of Oversight Office concurs in
the determination of the head of the agency, a certification of
that determination must be submitted to the President.
The third and final exception to the ten-year presumptive
declassification period rule is the only one that can be
invoked after the information has already been classified. At
any time prior to the declassification of the information at
either the ten-year point or some date provided for in the
first exceptions to the ten-year rule, an official of the
agency with original classification authority over that
information or category of information may determine that the
information should remain classified beyond the presumptive
declassification date. In order to stress to agencies that this
postponement should not become the rule, the legislation
imposes a set of procedural requirements: first, the
concurrence of the Director of the Oversight Office must be
obtained; and, second, a certification must be submitted to the
President. The bill limits the extension to no more than 15
years. Thus, the maximum amount of time that information
classified pursuant to the Government Secrecy Reform Act may
remain classified is 25 years.
There will be circumstances, however, in which even 25
years is insufficient to protect important national security
interests. By imposing steep hurdles on preserving the
classification of information beyond 25 years, the Committee
intends that agencies rely on this option in only the most
compelling cases. The bill makes clear that this option is to
be used only if an agency official determines that
extraordinary circumstances exist. The Committee expects that
this test will be satisfied only if the disclosure would cause
grave harm to a person or to the national security of the
nation. Having made a determination that extraordinary
circumstances exist and require the continued protection of the
information from disclosure, the agency official must then
convince the Director of the Oversight Office of the existence
of these extraordinary circumstances and secure the Director's
concurrence. The agency must, if it secures the concurrence of
the Director of the Oversight Office, notify the President of
the decision to postpone disclosure beyond 25 years. In such
cases, which the Committee expects to be few, the President
must then establish a schedule for the periodic review of the
information to determine whether protection from disclosure
remains warranted. The information will have to be
declassification at the earliest possible time after the
termination of the extraordinary circumstances.
The requirement that the Director of the Oversight Office
concur in determinations to delay the declassification of
information beyond ten years and 25 years is an important
safeguard against agency abuse of the process. Agencies will
have to explain the rationale for continuing the classification
of the information under review. The need for the concurrence
of an outside official within the executive branch will promote
better decision-making and help prevent the agencies from using
simply boiler-place language to justify decisions to postpone
declassification. Agencies are protected in cases in which they
can not obtain the concurrence of the Director of the Oversight
Office, because they can appeal to the Classification and
Declassification Review Board, and, ultimately, to the
President himself, who retains the ultimate authority to make
classification and declassification decisions as Commander-in-
Chief.
The Committee substitute also adds a provision to the
underlying bill that will protect the equities of agencies that
originate classified information. The substitute makes it clear
that no information may be declassified without the concurrence
of the agency that originated that information, except as
otherwise provided in the Government Secrecy Reform Act. Thus,
for example, if the Department of State has in its records a
report of the Central Intelligence Agency or information
derivatively classified on the basis of a Central Intelligence
Agency report that is due for declassification at ten years,
the State Department may not declassify the information on its
own. It must, instead, obtain the concurrence of the Central
Intelligence Agency, which originated the information. This
provision is designed to protect the equities of originating
agencies, because they will generally have a better sense of
the entire picture into which the classified information fits.
The substitute makes clear, however, that this limitation is
subject to the other provisions of the Government Secrecy
Reform Act, so originating agencies will not be allowed to use
this provision to trump the authority provided to the Director
of the Oversight Office or the Classification Review Board.
The substitute requires that agencies apply the same
balancing test to declassification determinations as they do to
classification decisions. The criteria that will guide agency
decisions are identical in both instances. The fact that the
criteria are identical does not mean that their application
will result in the same conclusion with respect to the same
information over time.indeed, one of the core concepts
underlying the report of the Commission on Protecting and Reducing
Government Secrecy is the concept that secrets have a life cycle. This
concept underlies the substitute as well. The bill specifically
provides that in evaluating the criteria in making declassification
determinations, agency officials must apply the criteria which are
"current as of the determination." Factors that once led ineluctably
to require that information be classified may change over time; the
environment in which the information may be used will also change. As
the circumstances change, the relative weight to be accorded the
relevant, applicable criteria will also change. The substitute requires
that any such changes be taken into account when evaluating whether to
declassify previously classified information.
E. Declassification of information classified prior to adoption of the
act
Section 2(e). The declassification time-tables, standards,
and procedures laid out in detail by the legislation are
intended to apply prospectively, only affecting information
classified pursuant to the Government Secrecy Reform Act. They
are not intended to cover the billions of pages containing
classified information that executive branch agencies currently
have in their possession. The Committee believes that it would
be too disruptive to superimpose the new statutory scheme on
agencies with such a huge backlog of classified information.
Executive Order 12958, however, addresses itself to the
current backlog of classified information and, as noted above,
sets out a schedule for the review and presumptive
declassification of this information. The Committee heard
testimony from Mr. Cohen of the CIA, Mr. Leonard of the Defense
Department, and Mr. Siebert of the Energy Department to the
effect that many agencies with large collections of classified
documents will not be able to meet the Executive Order's
deadlines for reviewing such documents and declassifying them
in bulk. Still, the Executive Order has successfully initiated
a process within executive branch agencies of reviewing their
classified documents and will standardize that process.
Rather than create an entirely new declassification system,
or impose new statutory requirements on a system that has been
initiated and is succeeding in establishing a routine process
for declassifying large numbers of documents that no longer
require protection, the bill simply directs the President to
establish procedures for declassifying information that was
classified on or after the effective date of the Government
Secrecy Reform Act. These procedures must be, to the maximum
extent practicable, consistent with the declassification
procedures and standards established under Section 2(d) of the
Act. The Committee anticipates that the executive will have
little difficulty in conforming to these requirements, because,
as noted above, the procedures and standards of Section 2(d)
are taken largely from Executive Order 12958, which is
currently in place. The legislation specifically directs that
the new procedures provide for automatic, or bulk,
declassification of information of classified for more than 25
years on the effective date of the Act. This requirement, too,
is consistent with the provisions of section 3.4 of Executive
Order 12958.
One difference with the current Executive Order provided
for in the legislation is the method of promulgation of the new
procedures. As with the procedures for classifying and
declassifying information under the Act, these procedures for
declassifying previously classified information must be
promulgated pursuant to notice and comment procedures, to allow
for public input into and knowledge of their development.
The Committee anticipates that, after receiving public
comment on the development of new declassification procedures,
the President will issue rules that substantially resemble
those provided for in Executive Order 12958, as modified by
worthwhile public suggestions and to the extent required to
conform to this legislation, particularly the imposition of the
new balancing test, and that succeeding will follow suit.
F. Amendment to the Freedom of Information Act
Section 2(f). The only avenue currently available for
seeking judicial review of the decision to classify information
is under the Freedom of Information Act. The Freedom of
Information Act generally provides that any person has a right
of access to federal agency records, except to the extent that
such records (or portions thereof) are protected from
disclosure from one of the Act's exemptions or exclusions.
The Freedom of Information Act currently provides an
exemption from disclosure for records that are "specifically
authorized under criteria established by an Executive order to
be kept secret in the interest of national defense or foreign
policy and [ ] are in fact properly classified pursuant to such
Executive order." 5 U.S.C. Sec. 552(b)(1) (Exemption 1). The
legislation would make a technical amendment to Exemption 1. As
amended, the provision would exempt from disclosure under the
Freedom of Information Act records that are "specifically
authorized to be classified under the Government Secrecy Reform
Act of 1998, or specifically authorized under criteria
established by an Executive order to be kept secret in the
interest of national security and [ ] are in fact properly
classified pursuant to that Act or Executive order."
The Committee believes that this change is simply
technical; it merely clarifies that, in the future, records
properly classified pursuant to the Government Secrecy Reform
Act will also be exempt from disclosure under the Freedom of
Information Act. This change is therefore needed to clarify the
scope of protection the executive will have in refusing to
disclose information properly classified not only in the past
under executive orders, but in the future under the Government
Secrecy Reform Act.
In clarifying that records properly classified pursuant to
the Government Secrecy Reform Act will be exempt from
disclosure under the Freedom of Information Act, the
legislation necessarily imports into its new secrecy regime the
judicial review available under the Freedom of Information Act.
For example, proper application of the public interest/national
security balancing test would be within the scope of judicial
review for Freedom of Information Act requests for classified
information, under the second clause of Exemption 1. Judicial
review is otherwise unavailable to review any actions or
failures to act under the Government Secrecy Reform Act.
The Government Secrecy Reform Act amendment to Exemption 1
of the Freedom of Information Act, 5 U.S.C. Sec. 552(b)(1), is
not intended to alter in any way the applicable standard of
review, e.g., Halperin v. Central Intelligence Agency, 629 F.2d
144, 148 (D.C. Cir. 1980); the significant deference currently
afforded to agency classification decisions, e.g., Maynard v.
Central Intelligence Agency, 986 F.2d 547, 556 n. 9 (1st Cir.
1993); Krikorian v. Department of State, 984 F.2d 461, 464-65
(D.C. Cir. 1993); Young v. Central Intelligence Agency, 972
F.2d 536, 538-39 (4th Cir. 1993); Stein v. Department of
Justice, 662 F.2d 1245, 1253 (7th Cir. 1981); Canning v. United
States Department of Justice, 848 F.Supp. 1037, 1042 (D.D.C.
1994); Willens v. National Security Council, 726 F.Supp. 325,
326-27 (D.D.C. 1989); or the special in camera and ex parte
procedures developed by the courts to handle Exemption 1 cases
that are currently the hallmarks of judicial review of
Exemption 1 claims in Freedom of Information Act litigation.
E.g., Patterson v. Federal Bureau of Investigation, 893 F.2d
595, 599-600 (3d Cir. 1990); Simmons v. United States
Department of Justice, 796 F.2d 709, 711 (4th Cir. 1986);
Salisbury v. United States, 690 F.2d 966, 973 n. 3 (D.C. Cir.
1982).
The amendment to the Freedom of Information Act is intended
by the Committee simply to be a conforming amendment. The
current legislation is not intended to work any change
whatever. Even the additional requirement of the new balancing
test required of agencies by the Government Secrecy Reform Act
before they can classify declassify information should not lead
the courts to conduct a more searching inquiry than is
currently permitted under the Freedom of Information Act. The
rationale for deference to agency determinations under past and
current executive orders retains its vitality under the new
law. Agency officials will continue to have the unique insights
into these matters by virtue of their expertise and experience
and their access to the information that allows them to
consider the complete context of national security and foreign
relations matters in which classification and declassification
issues arise. Because the Government Secrecy Reform Act makes
no substantive change to the Freedom of Information Act, the
Committee expects that the courts will continue to give
significant deference to the judgment of responsible agency
officials entrusted under this law to determine the proper
outcome of the balancing test established by this legislation.
Indeed, the Committee believes that with the enhancement of
independent internal review mechanisms in the executive branch
through the Office of National Classification and
Declassification Oversight and the Classification and
Declassification Review Board, the need for judicial review
may, over time, actually decrease.
Because of the prospective nature of the legislation, the
traditional handling of Exemption 1 cases under the Freedom of
Information Act in the event of changed executive orders should
continue to be followed. In the past, as executive orders have
changed, the courts have assessed the propriety of an Exemption
1 withholding under the executive order in effect when "the
agency's ultimate classification decision is actually made."
King v. Department of Justice, 830 F.2d 210, 217 (D.C. Cir.
1987). That rule should continue. Information classified under
an executive order should continue to be reviewed for the
propriety of the classification decision under the relevant
executive order. Information classified prospectively pursuant
to the Government Secrecy Reform Act will be reviewed pursuant
to its newly imposed standards. Current decisions require,
however, that when an Exemption 1 case is remanded to the
agency, it must apply the standards of the executive order in
place at the time of the remand. The Committee believes that
that practice too should continue and that Exemption 1 cases
remanded to agencies after the effective date of the Government
Secrecy Reform Act should be evaluated pursuant to its
provisions.
No other changes to the Freedom of Information Act, as
amended, are made by this legislation, and none is intended by
the Committee. The Committee therefore believes that even after
the adoption of this legislation, agencies and litigants will
find the territory of Exemption 1 litigation familiar.
section 3. office of national classification and declassification
oversight
Section 3(a). In the legislation, the Committee substitute
creates two entities to oversee the classification and
declassification process, as well as to report to Congress and
the President on the implementation of the Act. Establishment
of these entities is important to a balanced and accountable
functioning of the classification and declassification systems
established herein. Given the preclusion of judicial review
included in this legislation, little new accountability would
be injected into the system without the establishment of these
entities. The first new entity created in the Act is the Office
of National Classification and Declassification Oversight (the
Oversight Office).
Section 3(b) and (c). Rather than establishing an entirely
new bureaucratic structure to serve as the Oversight Office,
the Committee intends that the current Information Security
Oversight Office (ISOO) be transformed into the Oversight
Office. This will require that ISOO be strengthened and made
more independent, be placed directly in the Executive Office of
the President, and report directly to the President and to
Congress. The Director of the Oversight Office is to be
appointed by the President with the advice and consent of the
Senate. The Committee expects that nominees to the Director
will have broad experience in classification and
declassification procedures, in records management, and in
information technology. Indeed, one area of significant
contribution by the Oversight Office should be developing and
implementing new technologies to assist in the management and
declassification of classified information.
Section 3(d). The Oversight Office is to be an independent
authority to review and coordinate agencies' implementation of
the Act, review agencies' classification and declassification
procedures and budgets, consider agency requests to maintain
classified information beyond the time schedules set forth in
the Act, assist agencies in complying with the Government
Secrecy Reform Act by providing advice and technical expertise
on classification and declassification processes, and to keep
Congress and the President fully informed of agencies'
successes and failures in meeting the requirements of the Act.
To improve government-wide consistency in the application of
the provisions of this legislation, the Committee expects that
the Oversight Office will conduct periodic surveys of agency
practices and determinations to ensure proper and consistent
compliance with the Government Secrecy Reform Act.
Furthermore, the Committee has attempted to outline
declassification schedules which agencies are expected to meet,
while at the same time allowing flexibility so that truly
sensitive information can continue to be protected. Allowing
such flexibility is essential to the protection of national
security, but the Committee believes that an independent review
authority is necessary to ensure such flexibility is not abused
by agencies. The Oversight Office is intended to provide that
independent authority. Indeed, without the establishment and
vigorous activity of such an authority, it is unlikely the
goals of this Act could ever be met.
The Oversight Office, therefore, is to review all requests
by agencies to maintain classified information for periods
longer than prescribed in this Act. Should disputes arise
between agency heads and the Director of the Oversight Office
regarding such requests, the matter is to be referred to the
Classification and Declassification Review Board.
Section 3(e). The Committee believes that individual
agencies can not be expected to meet all of the obligations and
requirements of the Act by themselves. Moreover, when acting
independently to implement the Act, agencies are likely to
generate redundancies and inefficiencies. A central
coordinating authority is necessary to reduce the creation of
overlapping, or incompatible, information management procedures
and systems. The Oversight Office is expected to act as that
central coordinating body and to reduce inefficiencies in
agency efforts to implement the Act. In order to facilitate the
operation of the Oversight Office, agencies are required to
provide information as requested to the Oversight Office.
Section 3(f). Consistent with his mandate to protect
national security information effectively, the Director of the
Oversight Office is required to implement information security
procedures within the Oversight Office and among Oversight
Office personnel.
Section 3(g). Unclassified reports on compliance with this
Act are to be made by March 31 of each year. Classified
versions may also be prepared if necessary.
section 4. classification and declassification review board
Sections 4(a) and (b). The Classification and
Declassification Review Board (the Board) is the second entity
created to oversee the implementation of the Act. The Board is
to consist of five members to be appointed by the President
with the advice and consent of the Senate.
The Committee believes it is very important that Board
members reflect a wide range of views on classification and
declassification issues, and that the Board includes
individuals with experience in the protection of national
security as well as individuals with an appreciation for the
historical importance of releasing classified information to
the public and a commitment to open government. The Committee
expects each of these qualities to be a factor in choosing
nominees to the Board. In order to ensure such a balance is
achieved on the Board, the Committee considered requiring that
the President nominate individuals from different lists
prepared by the Director of Central Intelligence, the National
Security Advisor, the Archivist of the United States, and the
Office of Management and Budget. In the end, the Committee
decided the better approach is to allow more flexibility for
the President and require only consultation with the agencies
identified in this Act. Should representation of a wide variety
of views not be present among Board members, the nomination
process should be reviewed and stricter nomination requirements
considered. In order to ensure the independence of the Board,
no currently serving official of the United States may be
nominated to serve on the Board.
Section 4(c). The purpose of the Board is to review cases
in which disagreements develop between the Director of the
Office of National Classification and Declassification
Oversight and individual agencies regarding maintaining
classified information beyond the time schedules provided for
in this Act, as well as to hear appeals by individuals who have
filed requests for mandatory declassification review. The Board
is modeled on the declassification review procedures adopted
for the John F. Kennedy Assassination Records Review Board and
is intended to function in a similar manner.
Section 4(d). All decisions of the Board may be appealed
directly to the President within 60 days so that no
classification or declassification decision need be taken
without the President's approval. This requirement ensures that
the President's constitutional responsibility to protect
national security as Commander-in-Chief is not undermined.
Section 4(e). Again, consistent with its responsibility to
effectively protect national security information, the Board
will implement information security procedures as part of its
operations. The bill requires that Board members and staff have
appropriate security clearances.
Section 4(f). Board members are to receive only per diem
and travel expenses for the periods during which the Board
meets. It is the committee's expectation that relatively few
disputes will have to be heard by the Board each year. Numerous
disputes being taken to the Board requiring lengthy periods of
work for Board members should be seen as an indication that the
reforms required in this Act are not functioning as envisioned.
The Committee recognizes the need for a limited executive
staff to conduct the day-to-day business of the Board.
Therefore, the substitute provides the Director of the Board
with authority to appoint staff. In order to reduce the need
for unnecessarily increasing government bureaucracy however,
the Committee expects that the Board's executive staff will be
limited, and the legislation authorizes the detail of staff to
the Board from other federal agencies.
section 5. appeal of determinations of classification and
declassification review board
The provisions of Section 5 of the Committee substitute
preserve the President's constitutional authority as Commander-
in-Chief by making explicit that under the Government Secrecy
Reform Act, he remains the ultimate decision-maker with respect
to all classification or declassification decisions.
The substitute provides that if the Classification and
Declassification Review Board rejects an agency's appeal of a
decision of the Director of the Office of National
Classification and Declassification Oversight, the agency may
appeal the adverse Review Board decision directly to the
President. In addition, an individual or entity whose appeal to
the Review Board on mandatory declassification review is
rejected may also appeal to the President. The substitute makes
clear that the President's determination is final and not
subject to review. In order to protect the President's interest
in the orderly management of his affairs, the Committee
believes a limitation on the timeliness of appeals to the
President is warranted. Accordingly, the substitute requires an
agency, individual, or entity seeking presidential review of a
decision of the Review Board to file the appeal with the
President not later than 60 days after the date of the decision
which is being appealed.
section 6. prohibitions
Section 6(a). This provision is directed to the Executive
Branch and makes clear that nothing in the Act shall be
construed to authorize the withholding of any information from
Congress. As the branch of the national government vested with
the responsibility of passing laws and formulating national
policy, Members of Congress must be accorded access to
classified information in accordance with recognized procedures
to ensure its safe handling. The procedures and standards for
protecting information outlined in the bill are in no way
intended to restrict and may not be relied upon to deny Members
of Congress access to information.
Section 6(b). This provision was added to the bill by the
substitute amendment. Its inclusion was requested by Mr. Cohen
and Mr. Leonard in response to questioning at the Committee's
March 25, 1998 hearing. National Security Advisor Samuel
Berger's May 11, 1998 letter expressing the Administration's
views of S. 712 reiterated the Administration's position that
in order to be acceptable to the Administration, any bill must
"[e]xplicity prohibit conferring any new substantive or
procedural rights enforceable in the courts." Letter from
Samuel R. Berger to Senator Fred Thompson, May 11, 1998, page 2
(emphasis supplied). As introduced, S. 712 was silent on
whether it created new substantive or procedural rights subject
to judicial review. The courts have held that unless Congress
evinces clear and convincing evidence that judicial review is
prohibited, the courts will presume it was intended. Bowen v.
Michigan Academy of Family Physicians, 476 U.S. 667, 670-73
(1986); Abbott Laboratories v. Gardner, 387 U.S. 136, 140
(1967). Accordingly, the substitute adopted by the Committee
explicitly preserves the status quo with respect to judicial
review: the Act will create no new right of judicial review,
either substantive or procedural. Instead, the bill would set
up an appeals system that is entirely within the Executive
Branch and subject to supervision by the President, who will be
the ultimate decision-maker on questions of classification and
declassification. There would be no judicial review of
classification or declassification decisions under this Act.
The only judicial review permissible under the substitute
will be that available under the Freedom of Information Act, 5
U.S.C. Sec. 552. See also 50 U.S.C. Sec. 431(f). Judicial
review of classification decisions under the Freedom of
Information Act is already provided by law. This Act would
neither expand nor limit the scope of judicial review currently
available under the Freedom of Information Act. The intended
impact of this Act on judicial review under the Freedom of
Information Act is addressed in greater detail in the
discussion of section 2(f) above.
section 7. definitions
The definition section is limited. It defines "agency"
broadly to include any executive branch agency as defined in
title 5, United States Code, any military department as defined
in title 5, United States Code, and any other entity in the
executive branch that comes into possession of classified
information. This latter provision, which is intended to be
read broadly, is an important addition, as it will cover
components of the Executive Office of the President, which are
otherwise not covered within the traditional definition of
"agency" under title 5, United States Code.
The bill also defines "classify," "classified," and
"classification," as well as "declassify,"
"declassified," and "declassification." "Classified"
information, including its cognate terms, in simply that which
is determined, pursuant to the balancing test imposed by the
Government Secrecy Reform Act, and the procedures provided by
the Act, to require protection from unauthorized disclosure in
order to protect the national security of the United States.
"Declassification," including its cognate terms, simply
covers the process by which information that is or has been
classified is determined, pursuant to the time-tables or
standards imposed by the legislation, to no longer require
protection from unauthorized disclosure in order to protect the
national security of the United States.
section 8. effective date
The Government Secrecy Reform Act would take effect 180
days after its enactment. The Committee understands this to
mean that the Administration would have six months to prepare
to implement its provisions, and that the promulgation by the
President of the categories and procedures required by Section
26(b)(1) and the issuance of agency standards and procedures
required by Section 2(b)(4) must occur within the 180-day
period between enactment of the legislation and its effective
date, so that by the conclusion of that period, the executive
branch will be able to implement fully the provisions of the
Act.
The change to the Freedom of Information Act made by the
Government Secrecy Reform Act would also take effect 180 days
after enactment and would apply to pending cases, although not
to any cases in which a final judgment had been entered prior
to the effective date. Because no pending case would involve
information classified pursuant to the legislation, however,
this change to the Freedom of Information Act should have no
bearing on any pending Freedom of Information Act case.
V. Regulatory Impact Statement
Pursuant to paragraph 11(b), rule XXVI of the Standing
Rules of the Senate, the Committee, after due consideration,
concludes that S. 712 will not have a significant regulatory
impact upon individuals or businesses or any significant
economic impact upon them.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 13, 1998.
Hon. Fred Thompson,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 712, the Government
Secrecy and Reform Act of 1998.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dawn Sauter.
Sincerely,
June E. O'Neill, Director.
Enclosure.
S. 712--Government Secrecy and Reform Act of 1998
Summary: S. 712, the Government Secrecy and Reform Act of
1998, would establish new rules and organizations related to
classifying and declassifying information. CBO estimates that
the annual costs of S. 712 would range from about $10 million
to about $130 million, depending on how the bill would be
interpreted and assuming appropriation of the necessary
amounts. The bill would not affect direct spending or receipts;
thus pay-as-you-go procedures would not apply.
The Unfunded Mandates Reform Act (UMRA) excludes from
application of the act legislative provisions that are
necessary for the national security. CBO has determined that
all of the provisions of this bill fit within that exclusion.
Description of the bill: The rules governing information
classification and declassification are currently established
by executive order. S. 712 would provide a statutory foundation
for the classification process established in Executive Order
12958. It could also change current practices in at least two
respects. First, S. 712 would preclude the original
classification of a document unless the agency first determines
that national security concerns outweigh the public benefit of
keeping information unclassified. S. 712 would establish
specific criteria for making this determination, including
whether disclosure of information would better enable
individuals to hold government officials accountable for their
actions and whether disclosure would increase public awareness
or understanding of government activities.
Second, S. 712 might affect the protection of certain
information under existing laws. As under E.O. 12958, S. 712
would set a 10-year maximum for the initial period of
classification and would authorize extensions beyond 10 years
if declassifying the information would harm national security.
Also, like the current executive order, S. 712 would limit most
classification periods to 25 years. However, unlike E.O. 12958,
S. 712 would not specifically exclude information protected
under the Atomic Energy Act of 1954 or the National Security
Act of 1947 from operation of its provisions. This aspect of
the bill could nullify exemptions that some agencies are
permitted. Thus, the possible repeal of current exemptions
could dramatically increase the number of documents that
agencies must review to comply with mandatory classification
periods.
The bill would also establish two organizations--the Office
of National Classification and Declassification Oversight
(ONCDO) and the Classification and Declassification Review
Board. ONCDO would standardize the policies and procedures used
by all federal agencies for classifying and declassifying
information. The Classification and Declassification Review
Board would decide appeals by agencies over the classification
decisions of ONCDO and appeals lodged by individuals over
agencies' decisions.
Estimated cost to the Federal Government: CBO estimates
that the annual costs of S. 712 would range from about $10
million to about $130 million, depending on how the bill would
be interpreted and assuming appropriation of the necessary
amounts. The budgetary impact of S. 712 over the 1999-2003
period would depend primarily on if and how fast agencies would
be required to review certain documents, including a backlog
from several years. If the bill were interpreted so as to deny
the exemptions from review that are currently granted, costs
would total about $130 million annually. If the current
exemptions were continued, the costs of the bill would total
about $10 million a year due to the costs of establishing the
two new organizations and handling a slight increase in
requests for information under the Freedom of Information Act
(FOIA).
Mandatory classification periods
Based on the report of the Commission on Protecting and
Reducing Government Secrecy, about 300 million pages of
classified information are exempt from mandatory review under
current law. Other data suggest that the cost to review each
page amounts to $2 for most agencies, $3 for the Central
Intelligence Agency (CIA), and about $4 for the National
Security Agency. Thus, if the bill would repeal current
exemptions, the number of documents that agencies must review
and the costs they would incur would increase significantly.
Assuming that S. 712 would effectively nullify current
exemptions and that agencies would have between 10 and 15 years
to work off the current backlog of documents, CBO estimates
that discretionary costs would rise by about $75 million a
year. Reviewing the documents that would come up for review
each year would add another estimated $45 million to agencies'
annual costs.
Legal challenges to classification decisions
Enacting S. 712 could raise administrative and legal costs
for various agencies in response to additional requests for
information under FOIA and challenges to classification
decisions under the new test. The new requests could stem from
heightened awareness of the test an agency would be required to
apply, and the challenges could arise over disagreements on how
public benefits and national security concerns were measured
and balanced.
The most recent statistics show that in 1992 agencies
received $75,000 FOIA requests and spent $100 million to
implement FOIA. The costs to implement FOIA include both
administrative expenses--the cost of employees and office
equipment used to process FOIA requests--and legal expenses,
which may include attorney fees and other litigation costs
incurred in defending challenges to the denial of a FOIA
request. Assuming agency costs to implement FOIA have remained
relatively constant except for inflation, CBO estimates that
agencies now spend around $120 million annually to respond to
FOIA requests. CBO estimates that S. 712 would increase FOIA
requests by around 5 percent and consequently raise
discretionary spending by $6 million a year, assuming
appropriation of the necessary amounts.
Courts have shown deference to agency decisions concerning
the classification of information. CBO has no reason to believe
that challenges under S. 712 would be more successful than
those under existing law. If courts would continue to defer to
agency classification decisions, the number of legal challenges
would rise initially but then diminish.
New Organizations
CBO assumes that ONCDO would grow out of the Information
Security Oversight Office, which performs many of the functions
that ONCDO would perform. CBO estimates that the additional
costs of the new organization would total $3 million a year.
Under the bill, the Classification and Declassification
Review Board would consist of a chairman and four other members
from the private sector who are distinguished historians or
archivists and experts in national security matters. The
chairman would have the authority to hire an executive
secretary and other staff. CBO estimates that the Board would
cost about $1 million a year.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: Section 4 of
UMRA excludes from application of the act legislative
provisions that are necessary for the national security. CBO
has determined that all of the provisions of this bill fit
within that exclusion.
Estimate prepared by: Federal Costs: Dawn Sauter. Impact on
State, Local, and Tribal Governments: Pepper Santalucia. Impact
on the Private Sector: David Mosher.
Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 712 as reported are shown as follows (existing law proposed
to be omitted is enclosed in brackets, new matter is printed in
italic, and existing law in which no change is proposed is
shown in roman):
Part I--The Agencies Generally
CHAPTER 5--ADMINISTRATIVE PROCEDURE
Subchapter II--Administrative Procedure
[Sec. 552. (b)(1) Public information; agency rules, opinions, orders,
records and proceedings
* * * * * * *
[This section does not apply to matters that are--
[(1)(A) specifically authorized under criteria
established by an Executive order to be kept secret in
the interest of national defense or foreign policy and
(B) are in fact properly classified pursuant to such
Executive order;]
* * * * * * *
Sec. 552. * * *
(b) This section does not apply to matters that are--
(1)(A) specifically authorized to be classified under
the Government Secrecy Reform Act of 1998, or
specifically authorized under criteria established by
an Executive order to be kept secret in the interest of
national security and (B) are in fact properly
classified pursuant of that Act of Executive order;
* * * * * * *
Part III--Employees
Subpart D--Pay and Allowances
CHAPTER 53--PAY RATES AND SYSTEMS
Subchapter II--Executive Schedule Pay Rates
[Sec. 5314. Position at level III
[Level III of the Executive Schedule applies to the
following positions, for which the annual rate of basic pay
shall be the rate determined with respect to such level under
chapter 11 of title 2, as adjusted by section 5318 of this
title:
[Solicitor General of the United States
[Under Secretary of Commerce, Under Secretary of Commerce
for Economic Affairs, Under Secretary of Commerce for Export
Administration and Under Secretary of Commerce for Travel and
Tourism.
[Under Secretary of State (5).
[Under Secretary of Treasury (3).
[Administrator of General Services.
[Administrator of the Small Business Administration.
[Deputy Administrator, Agency for International
Development.
[Chairman of the Merit Systems Protection Board.
[Chairman, Federal Communications Commission.
[Chairman, Board of Directors, Federal Deposit Insurance
Corporation.
[Chairman, Federal Energy Regulatory Commission.
[Chairman, Surface Transportation Board.
[Chairman, National Labor Relations Board.
[Chairman, Securities, and Exchange Commission.
[Chairman, Board of Directors of the Tennessee Valley
Authority.
[Chairman, National Mediation Board.
[Chairman, Railroad Retirement Board.
[Chairman, Federal Maritime Commission.
[Comptroller of the Currency.
[Commissioner of the Internal Revenue Service.
[Under Secretary of Defense for Policy.
[Under Secretary of Defense (Comptroller).
[Under Secretary of Defense for Personnel and Readiness.
[Deputy Administrator of the National Aeronautics and Space
Administration.
[Deputy Directors of Central Intelligence (2).
[Director of the Office of Emergency Planning.
[Director of the Peace Corps.
[Deputy Director, National Science Foundation.
[President of the Export-Import Bank of Washington.
[Members, Nuclear Regulatory Commission.
[Members, Defense Nuclear Facilities Safety Board.
[Members, Board of Governors of the Federal Reserve System.
[Director of the Federal Bureau of Investigation,
Department of Justice.
[Administrator of the National Highway Traffic Safety
Administration.
[Administrator, Federal Railroad Administration.
[Chairman, National Transportation Safety Board.
[Chairman of the National Endowment for the Arts the
incumbent of which serves as Chairman of the National Council
of Arts.
[Chairman of the National Endowment for the Humanities.
[Director of the Federal Mediation and Conciliation
Service.
[Federal Transit Administrator.
[President, Overseas Private Investment Corporation.
[Chairman, Occupational Safety and Health Review
Commission.
[Governor of the Farm Credit Administration.
[Chairman, Equal Employment Administration.
[Chairman, Consumer Product Safety Commission.
[Under Secretary, Department of Energy.
[Chairman, Commodity Futures Trading Commission.
[Deputy United States Trade Representatives (3).
[Chairman, United States International Trade Commission.
[Under Secretary of Commerce for Oceans and Atmosphere, the
incumbent of which also serves as Administrator of the National
Oceanic and Atmospheric Administration.
[Associate Attorney General.
[Chairman, Federal Mine Safety and Health Review
Commission.
[Chairman, National Credit Union Administration Board.
[Deputy Director of the Office of Personnel Management.
[Under Secretary of Agriculture for Food, Nutrition, and
Consumer Services.
[Under Secretary of Agriculture for Natural Resources and
Environment.
[Under Secretary of Agriculture for Research, Education,
Economics.
[Under Secretary of Agriculture for Food Safety.
[Director, Institute for Scientific and Technological
Cooperation.
[Under Secretary of Agriculture for Rural Development.
[Administrator, Maritime Administration.
[Executive Director, Property Review Board.
[Deputy Administrator of the Environmental Protection
Agency.
[Archivist of the United States.
[Deputy Director of the United States Arms Control and
Disarmament Agency.
[Executive Director, Federal Retirement Thrift Investment
Board.
[Deputy Under Secretary of Defense for Acquisition and
Technology.
[Director, Trade and Development Agency.
[Under Secretary of Commerce for Technology.
[Under Secretary for Health, Department of Veterans
Affairs.
[Under Secretary of Benefits, Department of Veterans
Affairs.
[Director of the Office of Government Ethics.
[Administrator for Federal Procurement Policy.
[Administrator, Office of Information and Regulatory
Affairs, Office of Management and Budget.
[Deputy Director for Demand Reduction, Office of National
Drug Control Policy.
[Director of the Office of Thrift Supervision.
[Chairperson of the Federal Housing Finance Board.
[Executive Secretary, National Space Council.
[Controller, Office of Federal Financial Management, Office
of Management and Budget.
[Under Secretary of Education.
[Chief Executive Officer, Resolution Trust Corporation.
[Administrator, Research and Special Programs
Administration.]
Sec. 5314. Position at Level III
Level III of the Executive Schedule applies to the
following positions, for which the annual rate of basic pay
shall be the rate determined with respect to such level under
chapter 11 of title 2, as adjusted by section 5318 of this
title: Solicitor General of the United States
Under Secretary of Commerce, Under Secretary of Commerce
for Economic Affairs, Under Secretary of Commerce for Export
Administration and Under Secretary of Commerce for Travel and
Tourism.
Under Secretary of State (5).
Under Secretary of Treasury (3).
Administrator of General Services.
Administrator of the Small Business Administration.
Deputy Administrator, Agency for International Development.
Chairman of the Merit Systems Protection Board.
Chairman, Federal Communications Commission.
Chairman, Board of Directors, Federal Deposit Insurance
Corporation.
Chairman, Federal Energy Regulatory Commission.
Chairman, Surface Transportation Board.
Chairman, National Labor Relations Board.
Chairman, Securities and Exchange Commission.
Chairman, Board of Directors of the Tennessee Valley
Authority.
Chairman, National Mediation Board.
Chairman, Railroad Retirement Board.
Chairman, Federal Maritime Commission.
Comptroller of the Currency.
Commissioner of the Internal Revenue Service.
Under Secretary of Defense for Policy.
Under Secretary of Defense (Comptroller).
Under Secretary of Defense for Personnel and Readiness.
Deputy Administrator of the National Aeronautics and Space
Administration.
Deputy Directors of Central Intelligence (2).
Director of the Office of Emergency Planning.
Director of the Peace Corps.
Deputy Director, National Science Foundation.
President of the Export-Import Bank of Washington.
Members, Nuclear Regulatory Commission.
Members, Defense Nuclear Facilities Safety Board.
Members, Board of Governors of the Federal Reserve System.
Director of the Federal Bureau of Investigation, Department
of Justice.
Administrator of the National Highway Traffic Safety
Administration.
Administrator, Federal Railroad Administration.
Chairman, National Transportation Safety Board.
Chairman of the National Endowment for the Arts the
incumbent of which serves as Chairman of the National Council
of Arts.
Chairman of the National Endowment for the Humanities.
Director of the Federal Mediation and Conciliation Service.
Federal Transit Administrator.
President, Overseas Private Investment Corporation.
Chairman, Occupational Safety and Health Review Commission.
Governor of the Farm Credit Administration.
Chairman, Equal Employment Administration.
Chairman, Consumer Product Safety Commission.
Under Secretary, Department of Energy.
Chairman, Commodity Futures Trading Commission.
Deputy United States Trade Representatives (3).
Chairman, United States International Trade Commission.
Under Secretary of Commerce for Oceans and Atmosphere, the
incumbent of which also serves as Administrator of the National
Oceanic and Atmospheric Administration.
Associate Attorney General.
Chairman, Federal Mine Safety and Health Review Commission.
Chairman, National Credit Union Administration Board.
Deputy Director of the Office of Personnel Management.
Under Secretary of Agriculture for Food, Nutrition, and
Consumer Services.
Under Secretary of Agriculture for Natural Resources and
Environment.
Under Secretary of Agriculture for Research, Education,
Economics.
Under Secretary of Agriculture for Food Safety.
Director, Institute for Scientific and Technological
Cooperation.
Under Secretary of Agriculture for Rural Development.
Administrator, Maritime Administration.
Executive Director, Property Review Board.
Deputy Administrator of the Environmental Protection
Agency.
Archivist of the United States.
Deputy Director of the United States Arms Control and
Disarmament Agency.
Executive Director, Federal Retirement Thrift Investment
Board.
Deputy Under Secretary of Defense for Acquisition and
Technology.
Director, Trade and Development Agency.
Under Secretary of Commerce for Technology.
Under Secretary for Health, Department of Veterans Affairs.
Under Secretary of Benefits, Department of Veterans
Affairs.
Director of the Office of Government Ethics.
Administrator for Federal Procurement Policy.
Administrator, Office of Information and Regulatory
Affairs, Office of Management and Budget.
Deputy Director for Demand Reduction, Office of National
Drug Control Policy.
Director of the Office of Thrift Supervision.
Chairperson of the Federal Housing Finance Board.
Executive Secretary, National Space Council.
Controller, Office of Federal Financial Management, Office
of Management and Budget.
Under Secretary of Education.
Chief Executive Officer, Resolution Trust Corporation.
Administrator, Research and Special Programs
Administration.
Director, Office of National Classification and
Declassification Oversight.